• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.73
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• pp.65-90
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• 2017

The rule of warranty in English insurance law was established in the second part of the $18^{th}$ century by Lord Mansfield, who laid the foundations of the modern English law of insurance contract and developed very different rule of insurance law, especially in the field of warranty. At the time of Lord Mansfield, warranty, that is, the promise given by the assured, played an important role for the insurer to assess the scope of the risk. Legal environments, however, have changed since the age of Lord Mansfield. English and Scottish Commissions proposed very dramatic reform of law in the field of warranty law to reflect the changes of legal environment through the Insurance Act 2016. This article intends to consider the legal implications through the comparative analysis between the new regime of warranty in the Insurance Act 2015 and MIA 1906. The major changes in the Insurance Act 2015 are summarized as following. First, Basis of the contract clauses in non-consumer insurance contracts should be of no effect and representations should not be capable of being converted into warranties by means of a policy term or statement on the proposal form. This requirement should not be capable of being avoided by the use of a contract term and the arrangement of contracting out by parties should be of no effect. Secondly, The existing remedy for breach of warranty, that is, automatic discharge of the insurer's liability, should be removed. Instead, the insurer's libility should be suspended from the point of breach of warranty and reattach if and when a breach of warranty has been remedies. Thirdly, A breach of warranty should genally be regarded as remedied where the insured ceases to be in breach of it. In the other hand, for time-specific warranties which apply at or by an ascertainable time, a breach should be regarded as remedies, if the risk to which the warranty relates later, becomes essentially the same as that originally contemplated by the parties. Fourthly, where a term of an insurance contract relates to a particular kind of loss, or loss at a particular location/time, the breach of that term should only give the remedy in relation to loss of that particular kind of loss, or at a particular location/time. Finally, whether a term of an insurance contrat relates to loss of a particular kind of at a particular location/time should be determined objectively, based on whether compliance with that ther would tend to reduce the risk of the occurrence of that category of loss.

• Proceedings of the Korean Society of Marine Engineers Conference
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• 2005.11a
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• pp.92-93
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• 2005

A contract for the shipbuilding is usually a complicated and involves statement of rights, obligations and responsibilities which each party agrees vis-a vis the other. The ultimate purpose of the contract is the sale and transfer of the finished ship by the builder to the buyer. Contracts for the construction and sale of ships are categorized as contracts for the sale of goods under English, United States, Germany and some countries law. On the other hand, The shipbuilding contract may be classified, not as a contract of sale but as a contract for work and materials under Korea, Japan and some countries law. Especially, most of countries are now well settled with regard to liability of a manufacturer in tort for physical injury and on the other for pure economic loss to remote owners of chattels. Where there is either a breach of contractual warranty or an implied warranty, there may be admiralty jurisdiction, depending once again on the situs of the event and its relationship to traditional maritime activity. Contract principles will be applied to the first type of warranty and tort principles will be applied to the second. First of all, this thesis is dealt with the contents of contract under English Law. Secondly, this thesis is analysed into the liability of shipbuilder in Products Liability under English, American and Korean Law comparisons. In conclusion, the author tries to give some suggestions as countermeasures of Products Liability to the shipbuilder in Korea.

• Proceedings of the Korean Institute Of Construction Engineering and Management
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• 2008.11a
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• pp.216-221
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• 2008

This study has been carried out in order to observe the status of performance warranty contracting system currently being implemented at the advanced countries including Europe, U.S.A., and Japan, review the introduction feasibility and possibility. For this purposes this study has surveyed the concept and necessity of performance warranty contracting system as well as the status of domestic performance warranty contracting system. Especially the application environment for the performance warranty contracting system of Europe, U.S.A., Japan and Korea in terms of maintenance guarantee liability system, performance warranty regulations for design-build contracting system, selection method of successful bidder, performance warranty means, project contracting system including maintenance cost, and specifications and contract conditions for performance warranty system have been comparatively evaluated. And introduction methods of performance warranty contracting system were suggested.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.12
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• pp.133-162
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• 1999

The international sale transaction is in essence a sale of goods and presents all those commercial and legal problems in any sale of goods. As a result, A International sales contract imposes several duties on the parties : the seller must deliver the goods and transfer ownership in them, while the buyer must pay the price and take delivery of the goods. However, there are several problems which impede a active transaction between seller and buyer who have their places of business in other countries each other. Therefore, It is necessary to provide the concept on the conformity of goods in the Int'l Sale of Goods. Especially, In our consideration for the point of time when defects occurs, the existence of non-conformity of goods should be judged on the basis of time of delivery rather than time of contract. Moreover, The burden of proof about nonconformity of goods is another fact which make an international dispute between the contractual parties in an international trade. Thus, The consistency in the interpretation of law must be maintained betweened the warranty and seller's liability. In the Uniform Commercial Code and UN Convention, non-conformity of contract is made of contract liability. And in our civil and commercial law provisions of warranty should be understand as the special ones of the provisions of general non-performance of obligation liability. As a result, More concrete study of them is required because they may have a great influence especially on international trade. As a result, We should be our best in finding a helpful and systematic structure that the dualistic structure of nonperformance of obligation liability and warranty liability must be unified by studying the theories of English and American warranty and our legal system, as well as international practice and usage being used in an international trade.

• Proceedings of the Korean Institute Of Construction Engineering and Management
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• 2007.11a
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• pp.687-690
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• 2007

This study is a basic research on looking onto bringing performance warranty contract into the country, to consider the usage in architecture which it is usually used on road pavement in developed countries. The study will also apply performance warranty contracts on public private partnerships through examination and analysis of various matters which will lead to globalization of the korean architecture industry, the increase of quality of result, better convenience for the orderer, the decrease of cost, and the acceleration on research for technical development.

• Journal of Korea Trade
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• v.25 no.2
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• pp.152-177
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• 2021

Purpose - This study analyses the excepted requirement and burden of proof of the carrier due to unseaworthiness through comparison between the marine transport contract and marine insurance contract. Design/methodology - This study uses the legal analytical normative approach. The juridical approach involves reviewing and examining theories, concepts, legal doctrines and legislation that are related to the problems. In this study a literature analysis using academic literature and internet data is conducted. Findings - The burden of proof in case of seaworthiness should be based on presumed fault, not proved fault. The burden of proving unseaworthiness/seaworthiness should shift to the carrier, and should be exercised before seeking the protections of the law or carriage contract. In other words, the insurer cannot escape coverage for unfitness of a vessel which arises while the vessel is at sea, which the assured could not have prevented in the exercise of due diligence. The insurer bears the burden of proving unseaworthiness. The warranty of seaworthiness is implied in hull, but not protection and indemnity policies. The 2015 Act repeals ss. 33(3) and 34 of MIA 1906. Otherwise the provisions of the MIA 1906 remain in force, including the definition of a promissory warranty and the recognition of implied warranties. There is less clarity about the position when the source of the loss occurs before the breach of warranty but the actual loss is suffered after the breach. Nonetheless, by s.10(2) of the 2015 Act the insurer appears not to be liable for any loss occurring after the breach of warranty and before there has been a remedy. Originality/value - When unseaworthiness is identified after the sailing of the vessel, mere acceptance of the ship does not mean the party waives any claims for damages or the right to terminate the contract, provided that failure to comply with the contractual obligations is of critical importance. The burden of proof with regards to loss of damage to a cargo caused by unseaworthiness is regulated by the applicable law. For instance, under the common law, if the cargo claimant alleges that the loss or damage has been caused by unseaworthiness, then he has the burden of proof to establish the followings: (i) that the vessel was unseaworthy at the beginning of the voyage; and that, (ii) that the loss or damage has been caused by such unseaworthiness. In other words, if the warranty of seaworthiness at the inception of the voyage is breached, the breach voids the policy if the ship owner had prior knowledge of the unseaworthy condition. By contrast, knowingly permitting the vessel to break ground in an unseaworthy condition denies liability only for loss or damage proximately caused by the unseaworthiness. Such a breach does not, therefore, void the entire policy, but only serves to exonerate the insurer for loss or damage proximately caused by the unseaworthy condition.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.62
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• pp.33-53
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• 2014

This study examines the seller's liability for defects in title of goods under SGA. If the contracting parties choose SGA as a governing law, they should pay attention to whether a contractual stipulation for defects in title of goods is a condition or a warranty. It is because SGA divides contractual terms into a condition and a warranty. And its effects regarding a breach of a condition or a warranty are different. Under SGA s 12(1) as a condition, in a contract of sale, the seller has a right to sell the goods at the time of contract, and in the case of an agreement to sell, he will have such a right at the time when the property is to pass. Under SGA s 12(2) as a warranty, there is an implied warranty that (a) the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance and (b) the buyer will enjoy quiet possession of the goods as long as the buyer retains an interest in the goods. But the seller will not be liable if the third party unlawfully interferes with the buyer's possession.

• Proceedings of the Korean Institute Of Construction Engineering and Management
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• 2007.11a
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• pp.987-990
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• 2007

Warranty contracting is contracting methods that European Countries have applied to asphalt pavement projects from long ago, and in America as the expected effects of the warranty contracting are being verified to introduce it, the number of projects with warranty is being increased rapidly. In Japan, the warranty contracting suitable for Japanese style was established and is being applied. This study investigated and analyzed the present state of the warranty contracting being applied to European countries, America and Japan, and suggested advantages and disadvantages in introducing the warranty contracting into Korea and directions to introduce it. The principal result of this study is that performance bond contract system, performance surety bond system and performance bidding system should be established to introduce the warranty contracting into Korea.

• Proceedings of the Korean Institute Of Construction Engineering and Management
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• 2007.11a
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• pp.527-530
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• 2007

The construction market has gradually become complexity, variety and specialization, and then owner's requirements about quality has become various. In order to solve the problem such as stated above, advanced constructions in France, United Kingdom, Japan and United States have introduced warranty contract which is warranted to quality and performance for need of owner in determined term to ensure the quality of construction since 1960s. In addition to, domestic constructions have been meeting with international competition because of the open BOT market from FTA. Finally, this study proposed new warranty delivery system model in PFI on considering domestic status by benchmarking the delivery process and the characteristics of the warranty contract which is applied to PFI of global.

• International Journal of Highway Engineering
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• v.20 no.1
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• pp.1-8
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• 2018

PURPOSES : Case studies of an asphalt-overlay project with a performance-based contract method were conducted on a national highway in Korea to evaluate the effect of the method on asphalt pavement maintenance. This study evaluated the procedure of the performance-based contract method. METHODS : In this study, an asphalt-pavement maintenance project for a national highway was assessed with a performance-based contract to investigate the advantage of the new contract procedures. This is the first trial applying the performance-based contract to a pavement-rehabilitation project in Korea. In the four case studies, the warranty period of the performance-based contract was designed for seven years. The research team monitored the construction site to compare the normal contract method with the performance-based contract method. The case studies' project sites were investigated after the end of the construction. RESULTS : Based on the limited case studies, the performance-based contract method could extend the service life of the asphalt pavement and reduce the pavement-maintenance budget because the quality control was well managed by the contractors. However, a few construction laws would be necessary to apply the performance-based contract method in the future. CONCLUSIONS : Using the performance-based contract, the construction company made great efforts to guarantee the warranty period and to apply the optimal maintenance method, based on the pavement distress condition. The contractor and the agency would need to understand the new performance-based contract system for it to be activated. Therefore, a proper education program for the performance-based contract system would be needed to educate the stakeholders regarding the procedures and their effects on the pavement management and maintenance.